ALAGAMMAL Vs. SIVASUBRAMANIAN

JUDGEMENT

(1.) THIS revision is directed against the order in I. A.No.599 of 1993 in O.S.No.576 of 1991 in the Court of District Munsif of Valliyur. The parties to the suit are the sons and daughters of one Chithiraputhira Thevar and Sivanupillaiammal, The sons filed that action against the sisters for declaration and injunction in respect of an extent of 2.45.0 hectares in S.F.No.537 of Valliyur village stating that it is their ancestral property and after the death of their father, their mother and sisters have executed a relinquishment deed in their favour in respect of this property on 28.5.1971 and the plaintiffs alone are exclusively in enjoyment of this land. It appears that O.S.No.749 of 1990 between the same parties in respect of some other property is also pending trial. And defendants have instituted O.S.No.309 of 1991 in that Court seeking partition in respect of the present suit property and other items. The revision petitioner/ second defendant came forward with I.A.No.599 of 1993 under Sec.10, C.P.C. praying for stay of the trial of present O.S.No.576 of 1991 till the disposal of O.S.No.309 of 1991. The revision petitioner has sworn in the affidavit in support of the application that the decision in O.S.No.309of 1991 would bind both the parties in the other two suits and proceedings with the trial of all the suits would give room for rendering of conflicting decisions. The respondents/ plaintiffs opposed that application stating that an earlier application filed by the present revision petitioner under Sec.10, C.P.C. praying for the very same relief has already been dismissed as not pressed and, that dismissal order is a bar to the maintainability of the present application. Besides, the subject matter of the suit and issues in controversy in the three suits are different and all the parties in O.S.No.309 of 1991 are not on record in the present action.

(2.) THE trial court in the impugned order dated 20.4.1993 has extracted the averments in the plaint and counter and after formulating the point for determination, again repeated the respective contentions of both sides and dismissed the application holding that the contentions of the respondents are acceptable. It has not gone into the merits and de-merits of the respective claims and given reasons for its conclusions. It is practically a non-speaking order.

(3.) THE revision petitioner is unable to convince the court as to how this petition is maintainable in view of the fact that an earlier application I.ANo.149 of 1993 filed by him seeking the same relief has been dismissed as not pressed. He has placed reliance on Lachiram v. Tarachand, 71 M.L.J. 490, where it has been held that there is difference between the dismissal of suits and dismissal of execution applications. In the case of dismissal of execution petitions for default or on the ground that they are not pressed, the only point that is decided is that that application is dismissed and there is no bar in the way of a fresh application being made, if necessary the very next clay with the same prayer. That is settled law, and unless it can be said that there was a decision or adjudication which either directly decided the question on which the parties are at issue or which must be deemed to have impliedly decided it on the ground that the order could not have been made without such implied decision having been arrived at, the plea of res judicata cannot operate or apply. But as pointed out by the learned Judge in this decision, the court below therein while laying down the general proposition to the effect that dismissal for default operates equally as res judicata and that dismissal even when the application is not pressed has the same effect has failed to take into account the difference between the dismissal of suits and dismissal of execution applications. Learned Judge also pointed out that non-pressing of the application docs not mean that the decree-holder has accepted the defendant's objection, and there was no question of abandonment of the issue or any acceptance of the plea put forward by the judgment-debtor. THE question that arose between the parties has not been decided cither expressly or impliedly. Whereas in the present case having asked for stay of the proceedings in one case till the disposal of the earlier action and not pressing the application would undoubtedly mean that the claim had been abandoned.